Palmer: Slow-learning B.C. Liberals give up on gag law after third loss in court

The B.C. Court of Appeal has ruled the government’s latest effort to restrict pre-campaign political advertising is unconstitutional. The Liberals passed legislation in the spring allowing for a 40-day gag period, then referred it directly to the court for a ruling.

Photograph by: Mark van Manen
, Vancouver Sun

VICTORIA — Once again, a B.C. court has tossed an attempt by the B.C. Liberals to limit political advertising by unions and other groups in the run-up to a provincial election campaign.

Thursday’s ruling by the B.C. Court of Appeal was the third time in three years the government’s ill-advised efforts had run afoul of the constitutional protection of free speech.

Time was when the governing party opposed so-called gag laws, waxing indignant when the New Democrats moved to restrict political advertising in the 1990s.

The Liberals reversed their stance after the public-sector unions spent hundreds of thousands of dollars trying to defeat them prior to the 2005 election.

They fought back with a law that restricted unions and other third-party interests to spending no more than $150,000 on political advertising in the 120 days prior to the issuing of the writ for the fixed (28-day) election campaign.

Later, concluding the four-month ban was too much even for them, the Liberals reduced the span to 60 days. Then they used their majority to ram the enabling legislation through the house in the space of five minutes on the final day of the 2008 session.

But that which was easily swallowed by the government caucus did not pass muster with the courts. On the eve of the 2009 election, B.C. Supreme Court Justice Frank Cole ruled that there was no basis for restricting freedom of expression in the pre-campaign period.

Never ones to balk at another round of legal bills when spending public money, the Liberals took their case to the Court of Appeal. There they lost again in late 2011 as a three-judge panel agreed with the lower court, that the restriction was unconstitutional.

Ever-stubborn, the Liberals tried the legislative route again this spring, reducing the gag order to 40 days, with an option for it to be reduced to 20 in some circumstances. They then referred their newly downsized gag directly to the Court of Appeal for a ruling on its constitutionality.

The expedited hearing went ahead last month, with the Liberals arguing they’d tailored the amended law to earlier court rulings. In that regard, they cited the Supreme Court of Canada’s validation of restrictions on third-party spending during election campaigns, never mind that the high court had never suggested that the limitation could be extended to the pre-campaign period.

The Liberals also argued that the made-in-B.C. restriction was necessary “to balance the right of free speech against the legitimate wish to prevent the wealthy from dominating political discourse.”

A novel line of defence, it being hard to recall other occasions when the Liberals have gone to court to curb the privileges of the wealthy. But the Court of Appeal was no more persuaded of the merits of this version of the gag law than the one it rejected last year.

Not surprising, since the judgment’s author, Justice P.D. Lowry, was also part of the three-member panel that consigned last year’s attempt to the scrap heap.

One sensed, here and there in his decision, a degree of judicial exasperation at being asked to rule on a measure that was in most respects identical to its predecessor, particularly in perpetuating a broad-brush definition of prohibited advertising

“The amendments do not substantively alter either the limitations on third-party spending or the content of what constitutes election advertising from what the 2008 amendments provided,” he wrote.

“Given that this court has held the earlier amendments to be constitutionally invalid principally because of the overbreadth of the definition of election advertising, it is difficult to see on what basis the current amendments could be said to be constitutionally sound in respect to the same period when they contain essentially the same definition.”

As for the government’s attempt to extrapolate from the Supreme-Court-of-Canada-approved restrictions on campaign advertising, the judge wasn’t buying that line either.

“There is no clear and compelling reason to conclude the limitations on election advertising, and hence the freedom of political expression, in the campaign period are equally necessary in the pre-campaign period to preserve election fairness.”

He noted how the high court had made its ruling based on evidence, scientific research, and tight legal reasoning. Whereas the Liberals, in making the case for expanding the restrictions, had gone to the Court of Appeal with ... well, let the judge himself tell it: “Here there is nothing.”

Hence the verdict, joined by all three judges on the panel: “The current amendments are not shown to be demonstrably justified in respect of the defined pre-campaign period: they do not minimally impair the freedom of political expression. They fail to meet the requisite criteria to be constitutionally sound in the main for the same reason the 2008 amendments were held to be constitutionally flawed.”

So stop wasting court time already.

Shortly after the decision came down, the Liberals announced they would make no more attempts to limit advertising, be it 40 days, 20 days or even one day before the start of the official campaign.

But it took three court judgments and six judges to make them see it. Slow learners, these Liberals.

The B.C. Court of Appeal has ruled the government’s latest effort to restrict pre-campaign political advertising is unconstitutional. The Liberals passed legislation in the spring allowing for a 40-day gag period, then referred it directly to the court for a ruling.

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